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The Eleventh Circuit held that a "market share at or less than 50% is inadequate as a matter of law to constitute monopoly power."
(26) The Seventh Circuit observed that "[f]ifty percent is below any accepted benchmark for inferring monopoly power from market share."(27) A treatise agrees, contending that "it would be rare indeed to find that a firm with half of a market could individually control price over any significant period."
(28)
Some courts have stated that it is possible for a defendant to possess monopoly power with a market share of less than fifty percent.(29) These courts provide for the possibility of establishing monopoly power through non-market-share evidence, such as direct evidence of an ability profitably to raise price or exclude competitors. The Department is not aware, however, of any court that has found that a defendant possessed monopoly power when its market share was less than fifty percent.
(30) Thus, as a practical matter, a market share of greater than fifty percent has been necessary for courts to find the existence of monopoly power.(31)